Examination of Witnesses (Questions 220
TUESDAY 23 JANUARY 2001
220. I am always concerned when I see in any
Bill a clause which says, as in clause 20 (2)(b): ". . .
contains such incidental, transitional or consequential provision
as the Secretary of State thinks fit". Could you tell us
what you have in mind here; or rather what the Secretary of State
might have in mind or think fit in these circumstances?
(Mr Morrison) "Thinks fit" is only a reference
to including things in the subordinate legislation subject to
approval by Parliament. It would be an order subject to negative
resolution. This is a very standard reference and "as the
Secretary of State thinks fit" is to allow the working out
of the details. These might be, as it says, "transitional
arrangements"; it might be necessary or advisable to make
clear what the current position is on immediate cases that are
under consideration; when, for example, the new regime will apply.
It might necessitate changes in the rules or extension of the
rules that are applied to these sort of courts. We are not saying,
in fact, that anything will actually be necessary in order to
do this, but it is quite possible that some sort of transitional
or temporary arrangements will be put to Parliament. They will
all be put forward for Parliament's approval. The reference to
"thinking fit" does not give the Secretary of State
some sort of unfettered discretion to legislate.
Mr Key: That is all right then, and I
am grateful for that crystal clear explanation. It is important,
particularly for those who draft the legislation, to realise that
the negative procedure does not imply approval by Parliament.
It is not that if you are on the Statutory Instrument Committee
under the negative procedure you approve everything, because the
vote is not whether we approve of something, it is whether the
Committee has gone through the Instrument. I would not want anyone
in the real world to imagine that Parliament approves anything
that is put to us as a Statutory Instrument, it is a matter of
the Executive informing Parliament that they are going to do something.
Thank you very much.
221. What damage would be done if we were to
exclude sub-clause (2)?
(Mr Morrison) It would simply restrict the ability
to be sure that provision could be made for warrant officers in
the Summary Appeal Court which were other than a very rigid, narrow
provision. It is as simple as that.
222. In answer to my colleague you have been
unable to anticipate any concrete case.
(Mr Morrison) No. No decision has even been taken
in principle that there will be an extension to warrant officers'
eligibility to sit on Summary Appeal Courts. As no decision has
been taken in principle when to apply this, and will not be taken
until the workings of the appointment of warrant officers in ordinary
courts-martial have been considered over a period, I hope you
will forgive me for not having yet decided what transitional provisions
are going to be included in a regulation.
(Mr Miller) Mr Morrison did make the point, of course,
that, for example, it may be sensible to provide whether or not
warrant officers may sit in those cases which are outstanding
at the point that the change is made, if indeed it is made.
223. Given the fact that you accepted in a previous
clause that warrant officers were suitable people to be involved
in courts-martial, what is the logic and worry about extending
that same criteria to the next clause, clause 20, bearing in mind
the qualities that you have outlined in a warrant officer if they
work for the first clause would seem to work for the second?
(Mr Miller) It is simply that we obviously do not
at the moment have experience of using warrant officers on courts-martial
and these are themselves new courts of which we have no effective
experience. It was simply a desire to cross our bridges in order;
to get the initial reform under our belts and make sure that it
did not give rise to unanticipated problems before we extended
the move to the next step.
224. It seemed to me illogical in the sense
that the qualities you have described of warrant officers and
the justification for clause 19, if you accept that it would seem
to me the logic would be you would accept them on clause 20 as
well, they would bring the same qualities and experience to the
appeal as they would do to the court-martial.
(Mr Miller) Indeed, and it is because we think that
is likely to be the result that we are seeking this power in this
Act because otherwise we would have to wait until the next quinquennial
review and that would delay the introduction of warrant officers
into these courts longer than we think is likely to be justified.
225. Carrying on that line, how long do you
think you will need to see the warrant officers' experience in
courts-martial before you might come to a decision whether they
will be suitable for a Summary Appeal Court?
(Mr Miller) Assuming that warrant officers are involved
in a reasonable volume of cases, which is what I would expect,
then probably no more than a year or two. If we are going to do
this, if we decide we want to do it, I would expect us to do so
well before the next quinquennial review.
226. Could I ask the Service personnel, first
of all, whether they think there is any resistance to warrant
officers being on the membership of courts-martial and what is
the difference? I am not going to need an explanation from each
one of you. What is the difference in the Summary Appeal Court
that makes it so different from a court-martial?
(Brigadier Cottam) Perhaps if I could answer that,
Chairman. I think, first of all, we fully accept, as you have
heard, the appropriateness of warrant officers taking part in
courts-martial. The difference that we are reaching for is that
the Summary Appeal Court is in itself a new court and it will
take a while, and I would not like to say how long, to reach a
point where we are confident that the new system is working as
it was designed. That Summary Appeal Court, if one was trying
to seek a distinction, is a little closer to challenging the decision
of a commanding officer, that really being the purpose of the
appeal, whereas in the first instance that is not the purpose
of the court-martial. I do not believe that is an important difference
but I think it is sufficient to justify this sequence that is
being sought. I think we are very confident in the chain of command
that it is right to engage the warrant officers and expand the
pool of membership. I think it is equally right that we should
be allowed to do this by stages.
227. If I could just briefly come in. You say
that the Summary Appeal Court is more likely to be, I forget the
words you used, in direct conflict with
(Brigadier Cottam) Challenging the decision of the
228. Do you think that the warrant officer is
less likely or more likely to be a member?
(Brigadier Cottam) I do not think that is the point
that I would wish to make. I think I would have to give a neutral
answer as to whether he would be more or less likely. We would
like to see how well the Appeal Courts work, in the interests
of fairness, as they are designed to do in the new summary system
that we have and then see how a large a pool, which might or might
not include warrant officers, we would need for those Appeal Courts.
229. If a court-martial is seeking out truth
and justice and the Summary Appeal Court is the same principle,
if a group of people, of warrant officers, are considered sufficiently
upstanding and intelligent enough to take part in that, why are
they not considered at this stage to be worthy of going on? It
is almost like saying that jurors
(Mr Miller) I am sorry, if I may, that is not really
the point. The point here is we are dealing with two variables
and we would rather deal with one variable at a time in order
to be sure. For example, if we were to introduce warrant officers
into these courts immediately it is conceivable that problems
with the courts could be attributable to that. We would rather
see the courts stand or fail in their own right in the first instance
and then take the decision to extend membership. As I say, it
is simply a question of, in one sense, controlling the risk involved
in what we are doing although, frankly, I do not think any of
us think the risk is high but we just wish to be a bit careful.
230. I would not have so much concern if it
was not for the fact of (2)(b) to be perfectly honest.
(Mr Miller) (2)(b)?
231. Or not (2)(b).
(Mr Miller) Inevitably there is always the possibility
of questions coming up. In the one that we identified immediately,
which is how you deal with cases in the course of transition,
the point about (2)(b) is to enable us to deal with that.
Chairman: Thank you very much indeed
for clarifying that. Can we now move on to clause 21.
(Mr Miller) I wonder, Chairman, if I might at this
point ask the Committee's indulgence to ask Commodore Bryant to
retire to the cheap seats and bring forward Commodore Blackett,
who is the Chief Naval Judge Advocate, who may be better able
to help the Committee on the next few clauses.
232. Indeed. Thank you very much indeed for
your contribution this morning, Commodore Bryant.
(Mr Miller) I am sorry, I clearly did not read my
brief as well as I might have done. I would also like to change
the RAF representative, if I may, and bring forward Air Commodore
Andy Collier, who is the Director of Personnel Management Agency
Policy in the Royal Air Force.
233. Right. Thank you, Air Commodore. Welcome
to the Committee. Clause 21.
(Mr Miller) Under the Criminal Justice Act 1988 the
Attorney General may ask the Court of Appeal to review certain
sentences imposed by the Crown Court if he considers that the
sentence is unduly lenient. There is no equivalent power in relation
to courts-martial. Clause 21 therefore provides that the Attorney
General may exercise such a power. This would enable him to refer
certain cases to the Courts-Martial Appeal Court, with the leave
of that court, and the power would largely mirror the existing
power of the Attorney General in relation to civilian courts.
The one major difference between a court-martial sentence and
one imposed by a civilian court is the process of review by authority.
In order to deal with that the power we are giving is for the
Attorney General to refer a sentence after it has been confirmed,
after the review process has been completed, so he is looking
at the final decision on the sentence by the authorities. This
clause also provides that a decision of the Courts-Martial Appeal
Court may be appealed with leave to the House of Lords on a point
of law by either the Attorney General or by the accused. Again,
this is really an exercise in bringing the present courts-martial
procedures into line with practice in the civilian courts.
234. Chairman, I do not like this clause, it
has an element of double jeopardy. We went through that argument
in the House some 12 years ago in relation to the non-military
area of criminal law, so I suppose unless this is any worse than
the current element of double jeopardy which we have already accepted
this is probably not the right time to rethink the principle,
is that right?
(Mr Miller) We are trying to mirror the practice in
civilian law, so it should be no worse than what happens there.
235. How often do you envisage this power being
used in practice? That question may amount to saying can you think
yourself in your own considerable experience of sentences passed
by courts-martial which you thought, and perhaps the generality
of opinion at senior levels in the military, were inadequate and
should therefore have been reviewed according to the procedure
which you now operate?
(Mr Miller) I wonder if I might ask those of my colleagues
who have rather more direct experience of courts-martial.
(Brigadier Howell) The answer is yes.
236. How many?
(Brigadier Howell) I would say in the last year about
ten to 15.
237. Can you give us some examples?
(Brigadier Howell) I would not like to do that because,
of course, there are questions of victims involved and everything
else. I can certainly think of cases where
238. I do not think I want you to identify names
of individuals, it is the nature of the crime and then the inadequate
sentence which you think was passed by court-martial and should
have been subject to review in this way.
(Brigadier Howell) For example, very serious indecent
assaults in which the sentence did not include dismissal from
Her Majesty's forces. I can think of serious
239. Indecent assault against other service
men or women?
(Brigadier Howell) No, civilians. I can think of cases
where there have been serious homosexual assaults and a soldier
was retained in the Army causing the unit considerable difficulties.
What do you do with someone if the court-martial does not dismiss
them when they have been convicted of that sort of offence?